Author: Mees Brenninkmeijer*
| Jurisdiction: | Topics: |
The recent sports-related decisions from the European Court of Justice (“the Court”) mark a watershed in the relationship between EU law and international arbitration. RFC Seraing v FIFA is the latest in a line of cases reaffirming the Court’s insistence on “effective judicial review” of arbitral awards made by the Court of Arbitration for Sport (“CAS”). It raises fundamental questions about the balance between the finality of arbitral awards and ensuring the consistency of those awards with the fundamental principles and provisions of EU public policy. For a long time, following the Court’s decision in Eco Swiss, judicial review was limited to safeguard the autonomy of arbitral justice.
That balance has now shifted. The problem – from an EU perspective – is that CAS awards are reviewed exclusively by the Swiss Federal Tribunal, which limits its standard of review to Swiss public policy and does not annul awards that may contravene EU public policy. Seen as a way to circumvent the application of EU law, CAS arbitration has drawn the Court’s scrutiny, which is expanding the frontier of judicial review into sports arbitration – a move that echoes its ongoing tensions with intra-EU investment arbitration and may foreshadow similar interference in commercial arbitration.
Background
The RFC Seraing case concerned third-party ownership (TPO) agreements between Belgian football club RFC Seraing and a Maltese investment fund, granting the latter economic rights over players. These agreements violated the International Federation of Association Football’s (“FIFA”) TPO rules, leading to sanctions from FIFA. RFC Seraing challenged these sanctions before CAS, which upheld FIFA’s decision, and then before the Swiss Federal Tribunal, which refused to set aside the CAS award.
The club and investment fund also brought parallel proceedings before the Belgian courts, challenging both FIFA’s rules and the CAS system under EU law. The Belgian Supreme Court ultimately referred two questions to the Court for a preliminary ruling as to whether EU law precludes giving res judicata effect and evidential value to arbitral awards rendered outside the EU, where those awards are subject to review only before the court of a third country like Switzerland.
The Requirement of Effective Judicial Review
In its judgment of 1 August 2025, the Court held that rules granting res judicata effect to CAS awards are, indeed, contrary to EU law, since they deprive individuals of the possibility to obtain “effective judicial review” before the courts or tribunals of EU Member States (para. 111). This holding both confirmed and extended the Court’s earlier reasoning in ISU v Commission (discussed here, here, and here).
Building on ISU, the Court reiterated that, in principle, arbitration remains permissible within the EU, as long as it is compatible with the EU judicial architecture and consistent with EU public policy (para. 82). Echoing ISU and the European Court of Human Rights in Mutu and Pechstein v Switzerland, the Court deemed CAS arbitration “unilaterally imposed” (paras 92, 96). While mandatory sports arbitration may be warranted by associations’ autonomy, it “cannot justify” limiting individuals’ ability to invoke rights and freedoms conferred by EU law which form part of EU public policy (paras 94–95). To protect the rights and freedoms of athletes, clubs, and others engaged in sports-related economic activity in the EU, CAS awards must be open to effective judicial review (which notably applies “irrespective of the rules which may apply to the arbitration body”) (para. 83).
Crucially, for such review to be effective, courts must ensure substantive observance of principles and provisions which form part of EU public policy (para. 86). Member State courts must be able to review the interpretation of EU public policy, its legal consequences, and the classification of facts as established by the arbitration body (para. 101). In short, according to the Court, review of CAS awards must provide an in-depth assessment as to their consistency with EU public policy (para. 100). This mirrors a recent decision by the Grand Chamber of the European Court of Human Rights, which likewise held that the right to a fair trial under the Convention requires a similarly “rigorous” or “in-depth” judicial review from the Swiss Federal Tribunal (Semenya v Switzerland, paras 209, 238) (discussed here).
An Expansion of the EU Frontier
Notably, the Court in both RFC Seraing and ISU drew on its ruling in Eco Swiss, where it required national courts to refuse enforcement of awards that conflict with fundamental provisions of EU public policy. At the same time, Eco Swiss emphasized arbitral efficiency: review of arbitral awards “should be limited in scope” and annulment or non-recognition should occur “only in exceptional circumstances” (para. 35). This effectively endorsed the “second-look doctrine” – a conceptual framework established forty years ago by the US Supreme Court in Mitsubishi and further developed in remarkably pro-arbitration jurisprudence in many parts of the world. Essentially, it maintains courts’ scrutiny within limits, allowing arbitrations that deal with issues of public policy to proceed without being reviewed on the merits.
As underlined in RFC Seraing (paras 116–117), courts may refuse enforcement of arbitral awards under the New York Convention (art. V(2)(b)) if those awards are contrary to the public policy of that court’s country. But in the context of international arbitration, this must be narrowly construed – as is under the Brussels I Regulation (see Maxicar, para. 33). In other words, the Convention’s public policy rule is not meant to permit refusal of enforcement merely because the award differs from “the result to which the court would have come by applying its own law” (Cordero-Moss, p. 368). Yet in ISU – and now in RFC Seraing – the Court leans toward a more expansive review, which may be incompatible with the New York Convention (discussed here).
In a recent article on the relationship between EU law and sports arbitration, Paul Trinel and I warned that the ISU decision set “an undesirable precedent that broadens the function and scope of judicial review beyond the principled limits of international arbitration’s global architecture” (Brenninkmeijer and Trinel, p. 39), though it rightfully recognized some of sports arbitration’s shortcomings and peculiarities. Together with RFC Seraing, these rulings risk undoing Eco Swiss and unsettling the balance between arbitral finality and EU public policy. Fortunately, the Court in RFC Seraing stopped short of the more expansive approach in AG Ćapeta’s Opinion (discussed in our article and other blogs, here and here), limiting itself to awards concerning sports-related economic activity within the EU and to the review of EU public policy (as opposed to all relevant EU law). Still, it disregards the finality of awards rendered outside the EU and threatens their legal certainty.
The Wild West of International Arbitration
With these decisions, the Court appears increasingly suspicious of international arbitration. For the Court, it seems “there is only one kind of arbitration: bad arbitration” (Paulsson, p. 18), and it will only trust arbitration when placed within reach of effective judicial review by EU Member State courts. While relying on Eco Swiss, its approach may resemble the spirit of Achmea more. This risks broadening judicial review beyond its limits, though the issue might have been better resolved on arbitrability grounds (as in Achmea, Ingmar, Unamar, and national court decisions).
RFC Seraing creates serious risks. Could parties now withhold EU law claims from arbitrators, saving them for court? Will this increase the chance of parallel litigation and legal uncertainty? What about awards that never face judicial review? While this challenge may stay confined to CAS arbitration, there is reason to fear a slippery slope for commercial arbitration. The Court’s skepticism toward investment arbitration and now sports arbitration could spill into commercial arbitration, with the upcoming Reibel v Stankoimport decision as a crucial moment. The Court’s concern for EU law’s effective application and autonomy could extend to any non-EU award touching EU public policy. Imagine a commercial tribunal applying EU law without its award ever reaching an EU court, or an EU non-signatory challenging the award from a Swiss-seated arbitration they never consented to. How, then, to distinguish imposed CAS arbitration from voluntary commercial arbitration? And is that distinction more convincing than with investment arbitration (if either is convincing at all)?
Others share these concerns. Alexis Mourre recently underscored the EU’s broader skepticism of international arbitration, warning it may only be a matter of time before the Court revisits Eco Swiss. If RFC Seraing applies beyond sports, it would imply arbitral seats must be within the EU for awards to be effective in the EU. Similarly, in their Semenya dissent, Judges Eicke and Kucsko-Stadlmayer foresaw “a real risk” that in-depth judicial review could extend to arbitral awards “of whatever nature” under Swiss law or the New York Convention (para. 17).
Where Next?
Perhaps the key to a middle path lies in the public law dimension of both arbitrators and courts. Arbitrators are not just private dispute resolvers – they must continue “dealing with public interest concerns” (Brekoulakis, p. 210). The freedom of parties to contract for arbitration is limited by the integrity of those procedures, and arbitrators should feel grounded in their adjudicative function and the inherent powers that derive from it. Courts, for their part, must exercise proportionality. They should intervene only when arbitral procedures fail to meet basic standards. Private justice like CAS arbitration can be autonomous so long as it upholds public values and a reasonable standard of procedural integrity.
This public law alternative relies on trust and pragmatic considerations. To soothe the Court and uphold their end of the bargain, CAS could immediately do two things. First, it could improve its structural make-up and add more athlete representatives to its pool of arbitrators, creating an actual appearance of independence and boosting its legitimacy. Second, CAS could improve its rules on interim measures. Unlike most prominent commercial arbitration rules (ICC Article 28, LCIA Article 25, SIAC Article 45), CAS Rule 37 excludes concurrent jurisdiction of judicial authorities to order such measures when requested by a party. To protect athletes’ rights more effectively, CAS could amend its rules to resemble ICSID Rule 47 (ICSID having a similar asymmetric consensual structure and self-contained enforcement mechanism). Courts could deem the current waiver legally invalid (para. 107); parties to a CAS arbitration may agree otherwise, so long as agreement to an express waiver is not “unilaterally imposed” (para. 83).
All in all, the decisions in ISU and RFC Seraing revolve around a compromise: arbitral autonomy, in return for judicial oversight. This is not an invitation, however, for courts to second-guess awards: “the public policy rule is not meant to ensure the correct application of law, but to safeguard underlying fundamental values” (Brenninkmeijer and Trinel, p. 14). Courts, in other words, must not confuse compliance with public policy or “effective judicial protection” with an accurate application of the law. Judicial review is narrow – not to ensure perfect legal reasoning, but to protect the integrity of fundamental standards.
The concern is that the Court’s recent decisions go beyond this. It effectively demands that arbitrators apply EU law with precision – or else, face broader judicial scrutiny and a removal of their awards’ binding effect. In the end, we must accept that international sports arbitration and EU law are telling different, but not incompatible, stories. What matters in this relationship is that arbitral autonomy does not need to come at the expense of public interest – and that EU law can be upheld without destroying what makes international arbitration valuable. Both their goals can be achieved, so long as the systems that support them are built on trust and integrity. For better or worse, the balance in this relationship is now moving – and Reibel will likely be the next move.
*Mees Brenninkmeijer is a doctoral candidate at McGill University Faculty of law, focusing on issues of legal theory and international arbitration under the supervision of Prof. Fabien Gélinas. His work has been published in multiple peer-reviewed journals and currently receives support from the Quebec Research Fund. He previously trained with the ICC International Court of Arbitration, as well as the arbitration practice groups of two global law firms. He holds (law) degrees from the University of Amsterdam (BA, LLB, LLM).